Annex E
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Case no. E.1626/01-02
Refusal to provide continuing care funding
Complaint against:
Birmingham Health Authority
Complaint as put by Mrs S
1. The account of the complaint provided by Mrs S was that on 30 May 2001, her 90 year old mother, Mrs R, was admitted to hospital following a severe stroke, which had left her immobile, incontinent, and confused. As it was unlikely that Mrs R's condition would change, Mrs S thought that her mother should be transferred to a nursing home close to her family. On 19 June hospital staff assessed Mrs R against Birmingham Health Authority's criteria for eligibility for NHS funding for such care and decided that she did not qualify.
2. On 17 July, Mrs S wrote to the Health Authority challenging that decision. She complained that she had not been consulted or involved in the initial assessment process. On 22 August, the Health Authority's Commissioning Manager advised Mrs S that a second assessment of Mrs R had been completed and that she did not meet the criteria for NHS Continuing Care. On 11 September Mrs S wrote to the Health Authority to request a review of the decision to fund her mother's care. However, on 5 October the Health Authority advised Mrs S that the decision not to fund care was appropriate and that it had been decided that a review panel was unnecessary. On 10 December Mrs R was transferred to a nursing home. The Health Authority agreed to fund the nursing element of her care. Mrs R died six days later. Mrs S remains dissatisfied.
3. The matters investigated were that:
(a) the Health Authority's criteria for eligibility for continuing in-patient care were unreasonable; and
(b) the review process was not properly applied.
Investigation
4. The statement of complaint for the investigation was issued on 11 March 2002. On 1 April 2002 the Health Authority became part of the Birmingham and The Black Country Health Authority (the new Health Authority). Comments were received from the new Health Authority and relevant papers, including Mrs R's clinical records, were examined. I have not put into this report every detail investigated; but I am satisfied that nothing of significance has been overlooked.
Background
5. The statutory framework for the provision of health services is outlined in paragraph 6; paragraphs 7 to 12 summarise relevant Department of Health guidance on Continuing Care and paragraph 26 outline the review process. Relevant health authority policies and criteria are summarised in paragraphs 13-14 and 27. Following Mrs S' request that her mother should receive NHS-funded care in a nursing home closer to her family, Mrs R was assessed against the Health Authority's criteria for continuing in-patient care. At that time, the relevant national guidance was HSG (95)8 and HSC 1999/180; however in June 2001 new guidance was issued, HSC 2001/015, which superceded the previous guidance.
Complaint (a) the Health Authority's criteria for eligibility for continuing in-patient care were unreasonable.
Statutory framework
6. The provision of health services in England and Wales is governed by the National Health Service Act 1977, which states in section 3(1) that it is the Secretary of State's duty to provide services 'to such extent as he considers necessary to meet all reasonable requirements ...', including 'such facilities for ... the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; ...'
National guidance on Continuing Care
HSG (95)8 – NHS Responsibilities for Meeting Continuing Health Care Needs
7. In 1995 the Department of Health published HSG (95)8. This national guidance stated that with effect from April 1996, health authorities were required to have clear eligibility criteria in place for continuing NHS health care. Health authorities had to set priorities for continuing health care within the resources available to them. Annex A of the guidance 'Conditions for Local Policies and Eligibility criteria for Continuing Health Care', listed a number of conditions that health authorities had to cover in their local arrangements and included the following:
'E Continuing in-patient care
'… The NHS is responsible for arranging and funding continuing in-patient care, on a short or long term basis, for people:
- where the complexity or intensity of their medical, nursing care or other clinical care or the need for frequent not easily predictable interventions requires the regular (in the majority of cases this might be weekly or more frequent) supervision of a consultant, specialist nurse or other NHS member of the multidisciplinary team;
- who require routinely the use of specialist health care equipment or treatments which require the supervision of specialist NHS staff;
- have a rapidly degenerating or unstable condition which means that they will require specialist medical or nursing supervision.'
HSC 1999/180 – Ex parte Coughlan: Follow-up Action
8. In August 1999, in response to a Court of Appeal judgment in a case brought by Miss P Coughlan (the Coughlan judgment), the Department of Health issued further guidance on continuing health care in the circular HSC 1999/180. It included in its summary of the judgment:
'The NHS does not have sole responsibility for nursing care. Nursing care for a chronically sick person may in appropriate cases be provided by a local authority as a social service and the patient may be liable to meet the cost of that care according to the patient's needs. ... Whether it was unlawful [to transfer responsibility for the patient's general nursing care to the local authority] depends, generally, on whether the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide. Miss Coughlan needed services of a wholly different category…'
9. The Department's guidance included in its description of the judgment:
'(d) Local Authorities may purchase nursing services … only where the services are:
(i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide ...; and
(ii) of a nature which it can be expected than an authority whose primary responsibility is to provide social services can be expected to provide.
(e) Where a person's primary need is a health need, then this is an NHS responsibility ...'
HSC 2001/015 – Continuing Care: NHS and Local Councils' Responsibilities
10. In June 2001, the Department of Health produced new guidance, HSC 2001/015, the purposes of which included consolidating guidance on continuing NHS health care in light of the Coughlan judgment. This cancelled all of the previous guidance I have cited including HSG (95)8, and HSC 1999/180. Health authorities, in conjunction with primary care trusts (PCTs) and local councils were asked to ensure that continuing health care policies complied with the guidance by 1 October 2001 and by 1 March 2002, they should have agreed joint eligibility criteria, setting out their respective responsibilities for meeting continuing health and social care needs. (Note: In May 2002, in their guidance Fair Access to Care Services, the Department of Health said that continuing care criteria needed to be agreed at Strategic Health Authority level by 1 October 2002.)
11. Annex C of the guidance, 'Key issues to consider when establishing continuing care eligibility criteria', listed the matters which health authorities in discussion with local councils should consider when establishing their eligibility criteria for continuing NHS health care. These included:
- The nature or complexity or intensity or unpredictability of health care needs (and any combination of these needs) requires regular supervision by a member of the NHS multidisciplinary team, such as the consultant, palliative care, therapy or other NHS member of the team.
- A need for care or supervision from a registered nurse and/or a GP is not sufficient reason to receive continuing NHS health care.
- The location of care should not be the sole determinant of eligibility. Continuing NHS health care may be provided in a NHS hospital, a nursing home, hospice or the individual's own home.'
The guidance did not explain exactly how these factors should affect eligibility.
HSC 2001/17 – Guidance on Free Nursing Care in Nursing Homes
12. In September 2001, in circular HSC 2001/17, the Department of Health issued guidance on free nursing care in nursing homes stating:
'… from 1 October 2001, those people paying fees for nursing home care in full from their own resources ("self-funders") will no longer have to pay for registered nurse care in a nursing home where the NHS assesses such care as needed. The NHS will become responsible for this group from that date.'
The Health Authority policy and criteria
13. In response to HSG 95(8) the Health Authority established a 'Continuing Health Care' Policy (the policy). The criteria under which a patient was entitled to long-term in-patient care included when he/she has:
'such complex clinical needs that s/he requires at least weekly assessment and/or review by a consultant. Has been assessed for rehabilitation and found to have no further capacity from such programmes.
OR
'daily care incorporating continual intensive care skilled health care supervision and/or intervention on a 24 hour basis. Has been assessed for rehabilitation and found to have no further capacity from such programmes.'
14. The Health Authority also published a patient leaflet entitled 'Your Entitlement to Continuing [NHS-funded] Care' which listed the criteria which would entitle patients to NHS-funded continuing care as:
- 'When their health needs are so complex and difficult that they:
- need skilled health care staff to look after them around the clock;
- need a weekly review of their condition by an NHS consultant;
- are unlikely to get better or benefit from rehabilitation therapy.
- 'when they could die at any moment and it would not be right to transfer them from hospital…'
Sequence of events
15. I set out below the principal events and correspondence relevant to the matters investigated.
30 May 2001 - Mrs R was admitted to hospital following a severe stroke.
19 June - The hospital stated that Mrs R was ready to be discharged to a nursing home. A nursing assessment was completed for Social Services, which showed that their criteria for nursing home placement were met. The nursing records state:
'Mrs R … currently requires 24 hour care and attention under the supervision of a registered nurse … nursing home care is indicated … Does not require NHS Continuing Health Care.'
13 July – The Health Authority's criteria for NHS continuing care were considered, following a request from the family for NHS-funded care. A multi-disciplinary assessment of Mrs R was carried out by a Clinical Nurse Specialist, Consultant Geriatrician, Tissue Viability Nurse and a Physiotherapist. They concluded that Mrs R was not eligible for continuing care funding stating that:
'Mrs R's clinical needs are not so complex that she requires at least weekly assessment and or review by a Consultant.
'Daily care can be provided under the supervision of a Registered Nurse with supporting visits from the Tissue Viability Nurse.'
On 13 July a meeting took place between Mrs R's family and the multi-disciplinary team that had assessed Mrs R. Mrs R's condition was discussed. In relation to NHS-funded continuing care an explanation was given as to why the criteria were not met and the copy of the criteria and printed eligibility form was given to the family.
17 July - Mrs S wrote to the Health Authority to ask for a review of the assessment.
'I request a review of the assessment made on 19 June … My mother's present condition is very serious as following the severe stroke she suffered on 30 May, she is paralysed on her left side and is unable to feed unaided. She cannot walk or sit upright and is totally reliant upon others for her health and well-being. The burns she sustained at the time of the stroke … are not healing after seven weeks of hospital treatment … Her left arm and hand are also very swollen at present. She has also suffered considerable memory loss as a result of the stroke, resulting in problems of family recognition.'
14 August - A different Consultant Geriatrician carried out a further assessment of Mrs R's eligibility for in-patient continuing care. In his letter to the hospital Commissioning Manager, the Consultant Geriatrician wrote:
'… [Mrs R] is now ten weeks after a severe stroke which left her immobile, needing hoisting for transfers, in need of all personal care, but able to feed herself, needing occasional enemas, catheterised and with a sore left heel, a superficial sore on her sacrum and a healing burn on the left side of her chest. She is nursed on a Nimbus III mattress, but is fully alert though confused and can sit out of bed.
'Although her cardiac condition may from time to time need consideration, I do not believe she needs weekly Consultant supervision, nor do I foresee useful prospects of rehabilitation. In so far as the wording of the criteria is capable of precise interpretation, I do not think that she needs daily care incorporating continual intensive skilled care with health care supervision or intervention on a 24 hour basis, nor on the other hand is her prognosis foreseeably eight weeks or less. I do not therefore feel that she meets the [Health] Authority's Continuing Care Criteria for continued in-patient care.'
22 August - The Health Authority again advised Mrs S that following the second assessment Mrs R had not met the criteria for NHS Continuing care.
10 December - Mrs R was discharged to a nursing home, where she died six days later.
Mrs S' evidence
16. In her letter to the Ombudsman Mrs S complained that her mother had been in hospital for over five months unnecessarily and that as only her basic needs were being met, her quality of life was poor. Despite being unable to do anything for herself, her mother was unable to obtain NHS funding for continuing in-patient care in a nursing home.
The new Health Authority's response to the statement of complaint
17. On 19 April 2002, in his formal response to the statement of complaint the Chief Executive of the new Health Authority wrote:
'… The [Health] Authority's criteria were originally produced in response to the requirement to agree continuing health care criteria set out in HSG(95)8. This guidance identified a need to include a category for continuing in-patient care that covered patients with a level of complexity or intensity of the need that meant that they needed regular specialist skilled health care supervision. (Annex A, section E of the guidance).
'There is obviously a balance to be struck in producing criteria between providing sufficient clarity and consistency and ensuring that staff applying the criteria are able to relate them to the circumstances of any particular patient. The health authority's view, however, is that the criteria as currently produced:
- identify a group of patients whose clinical needs are so complex that they require regular consultant review
- identify a group of patients whose need for care is so intensive that they need daily skilled health care supervision
- distinguish between patients who may be in need of care but whose needs could be met through the services normally available to, for example, residents of nursing homes and patients with higher dependency continuing healthcare needs.
'The [new Health] Authority is, also, in the process of reviewing our continuing healthcare criteria following the [Coughlan] judgment and recent guidance received from the DoH (HSC 2001/015). We are in the final stages of this review which has included seeking advice from the [Health] Authority's solicitors and are consulting with staff involved in applying the criteria in both health and social services. It is, however, likely that the relevant sections of the criteria will be revised to read:
"the person has such complex, unstable and/or unpredictable health care needs that s/he requires continual intensive skilled health care supervision and/or intervention on at least a daily basis. The level of care needed will be over and above the highest level of free nursing care provided in a nursing home
AND
has been assessed for rehabilitation and found to have no further capacity to benefit from such programmes".
'The revision is designed to:
- provide clearer criteria for use by staff
- focus more directly on the complexity, instability or unpredictability of care needs rather than the frequency of intervention by particular health care professionals
- provide a specific link between the criteria and the levels of need set out in the guidance from implementing NHS responsibility for nursing care in nursing homes.
'We do not anticipate that this revision will lead to a significant shift in the threshold for in-patient continuing care but it should produce clearer and more focussed definition …'
18. In further comments in October 2002, the Head of Corporate Affairs at the new Health Authority said:
' [The Health Authority] had some discussions with lawyers post Coughlan, although I have not found any clear documentary evidence of advice received at the time. The recollection of those involved was that there were not any particular points of concern.
'This is borne out by some legal advice the [Health] Authority received … in September 2001, which states that "the existing criteria are, I believe, generally sound, although clearly not framed in language which is now common following the Coughlan judgment. In particular they do not expressly refer to the limitation on Social Services ability to purchase nursing care expressed in the Coughlan case, by reference to what is incidental and ancillary for the provision of accommodation The Court of Appeal gave no clear guidance on the interpretation of this although significantly they approved … guidance … that talked in terms of the general nursing care in nursing home being the responsibility of Social Services. Your existing criteria do have an approximation to the 'quantity' test in the second alternative for in-patient care." …'
19. In further comments in November 2002 the Chief Executive of the new Health Authority said:
'The former Birmingham Health Authority criteria were not intended to suggest that only patients who required a nurse to be with them and attending to them without a break 24 hours a day might meet the criteria but we accept that it is possible they could have been interpreted in that way …
' … [the former Authority's lawyers] concluded that the criteria were broadly in line with what was expected although they identified some areas where the language of the criteria did not reflect that being used after the Coughlan judgment. This view was reported to the West Midlands Regional Office [of the NHS Executive], which was the requirement at the time.
' … The criteria were designed to recognise a group of people whose needs for nursing care were greater than could be regarded as incidental or ancillary to the provision of accommodation: and indeed the Health Authority funded a number of nursing home placements for people who were judged to meet the continuing care criteria. We recognise however that the wording used in the … criteria was not the same as contained in the Coughlan judgment and that therefore it may not have been clear that this was the way in which the criteria were intended to operate …'
Findings (a)
20. The matter I will consider first is whether the Health Authority's criteria for eligibility for continuing in-patient care were unreasonable. The national guidance, as set out in paragraph 7, stated that health authorities should fund the costs of continuing care for those patients whose health care needs were so complex or intense as to require regular supervision/intervention of specialist and/or NHS staff. Health authorities have the discretion to determine their own eligibility criteria, provided that these appropriately reflect the national framework. The Authority's criteria required a need for either weekly input from a consultant or continual intensive skilled health care supervision on a 24 hour basis. While it is hard to be sure how the latter criterion would be applied in practice, there is a risk that it would have been interpreted as meaning that only patients who required a nurse to be with them and attending to them without a break 24 hours a day might be seen to satisfy the criterion. That would be more restrictive than the national framework. However my main concern about the criteria is how they measure up to the Coughlan judgment. Health authorities had been asked, following the Coughlan case in 1999, to review their criteria in the light of the judgment. The judgment, and subsequent guidance, clarified the point that health authorities could not expect social services to fund nursing services unless the services were merely incidental or ancillary to the provision of accommodation and of a nature which a social services authority could be expected to provide. The Health Authority's criteria do not appear to have been amended at that point, even though they do not reflect that position: in my view there would certainly be a group of people who do not need weekly review by a consultant or continual intensive skilled health care supervision on a 24 hour basis, but whose needs for nursing care are greater than could be regarded as merely incidental or ancillary to the provision of accommodation. Therefore, in the light of the Coughlan judgment, the Health Authority's criteria were certainly over restrictive. The judgment did not change the law, but clarified what the law had already been. The criteria had therefore been over restrictive since 1996.
21. Mrs R was first assessed as ineligible for full NHS funding for her nursing home care in June 2001. She continued to be refused funding from then until December 2001 when she was discharged from hospital to a nursing home (where she died very soon afterwards). By this point, the Health Authority were obliged to fund the registered nursing element of her nursing home care, following the implementation of HSC 2001/17 in October 2001. At the time of her discharge to the nursing home the decision on full funding for NHS care continued to be based on the original over restrictive criteria dating from 1996. However the Health Authority had been expected, by October 2001, to have ensured that continuing NHS care policies complied with the revised guidance (HSC 2001/015) which had been issued in June 2001, and by March 2002 they should have agreed new joint eligibility criteria for the respective responsibilities of meeting health and social care needs. Also from October 2001 some of the concerns raised by the Coughlan judgment about the funding of nursing care would not apply in quite the same way, as (following HSC 2001/17 – paragraph 13) health authorities were funding nursing care in homes for patients such as Mrs R who would otherwise have had to pay for it themselves. Although the deadline of March 2002 for agreeing joint eligibility criteria was postponed until October 2002, in this case the Health Authority had not revised their criteria since 1996, even in the light of the Coughlan case and the 1999 guidance. I criticise the Health Authority for that. I conclude that the Health Authority, in failing to revise their criteria and assessing Mrs R only against their, over restrictive, 1996 criteria, acted unreasonably.
22. I am also concerned that the draft of the new eligibility criteria as outlined by the new Health Authority, paragraph 18, might still be more restrictive than the current guidance intends: though the way the guidance is drafted makes it difficult to be sure. The draft new Health Authority criteria requires a need for 'daily' supervision or intervention by NHS staff, whereas the national guidance refers only to that being needed 'regularly'.
23. How have the Health Authority's failings affected Mrs R and Mrs S? The Health Authority's criteria were certainly significantly more stringent than could reasonably have been the case between April 1996 and October 2001. It seems likely therefore that some people who were entitled to NHS-funded continuing care in the Birmingham area from June 1996 were denied it. Had Mrs R been assessed against criteria which were in line with the then guidance and the Coughlan judgment, she might (though it is not possible to be certain) have been deemed eligible for NHS funding for her nursing home care. She might then have left hospital earlier in 2001 and continued to receive full funding for her nursing home care until her death in December. However she did in fact have full NHS funding for her care for virtually all of that period, as she was in hospital until a few days before her death. By the time she was discharged she was entitled to, and got, free nursing care for the short period she survived after admission to the home. I do not think therefore that there was any major financial injustice to her estate.
24. However Mrs S complained that as a result of the decision not to fund in-patient continuing care, her mother missed the opportunity of an early transfer to a nursing home closer to her family, and remained in hospital unnecessarily. Nothing prevented Mrs R's family from making arrangements to discharge her to a nursing home as soon as she was well enough. However that might have been at her own cost, and I can understand why her family did not do that while they were still disputing the assessment and criteria used for determining eligibility for NHS funding. Nevertheless, she could in my view have suffered an injustice, in that had the use of reasonable criteria led to her being considered eligible for funding, she probably would have moved to a nursing home closer to her family at a much earlier stage. Sadly there is nothing I can recommend now which could be done to remedy that situation. However I know that Mrs S was also keen to make sure that others did not suffer similarly. I too am concerned about that.
25. The organisation of the NHS has changed since these events. Birmingham Health Authority no longer exists. Responsibility for setting eligibility criteria now lies with the new Birmingham and The Black Country Health Authority, and the relevant budget for funding such care will be held by a Primary Care Trust (PCT). While I recognise that the new Health Authority played no part in these events, I must regard them as responsible for taking remedial action. I recommend that the new Health Authority should, with its associated PCT and local authority colleagues, review the eligibility criteria for funding continuing care that have been in operation since April 1996 to ensure that they were in line with the Coughlan judgment and other relevant guidance at that time. I further recommend that the new Health Authority should, with its associated PCT and local authority colleagues, determine whether there were any patients who were wrongly refused funding for continuing care from April 1996 onwards, identify them and make the necessary arrangements for reimbursing the costs they incurred unnecessarily. To ensure that the revised continuing care policy and eligibility criteria to be used in the future appropriately reflect the intentions of the Department of Health, I recommend that the new Health Authority seeks advice from the Midlands and East Health and Social Care Directorate. Following this advice and to avoid any further delay, I recommend that the new Health Authority promptly sets out a clear plan for the implementation of its revised criteria for funding continuing care. Although the new Health Authority said that the revision was intended to provide clearer criteria for staff to use, if the criteria are to be applied consistently (and for that to be clear to patients and carers), guidance for staff (also made available to the public) on interpreting the criteria and assessing patients against them will also be needed. I recommend that the new Health Authority produce such guidance. I uphold the complaint.
Complaint (b) the review process was not properly applied
National guidance on Continuing Care Review Panels
HSG (95)39 – Discharge from NHS In-patient Care of People with Continuing Health and Social Care Needs - Arrangements for Reviewing Decisions on Eligibility for NHS Continuing In-patient Care'
26. In 1995, detailed guidance, HSG (95)39, was issued to health authorities and trusts on dealing with applications for review of decisions about eligibility for NHS continuing in-patient care. The review procedure did not apply where patients or families wished to challenge the content rather than the application of the eligibility criteria. The guidance included, as an appendix, a checklist of issues to be considered before referring a case to a review panel. It also included:
'4. The review procedure is intended as an additional safeguard for patients assessed as ready for discharge from NHS in-patient care who require ongoing continuing support from health and/or social services, and who consider that the health authority's eligibility criteria for NHS continuing in-patient care (whether in a hospital or in some other setting such as a nursing home) have not been correctly applied in their case.
'19. The health authority does have the right to decide in any individual case not to convene a panel. It is expected that such decisions will be confined to those cases where the patient falls well outside the eligibility criteria, or where the case is very clearly not appropriate for the panel to consider …'
In June 2001, the Department of Health issued new guidance HSC 2001/015, which cancelled previous guidance including, HSG (95)39. However, the review process detailed in HSG (95)39, remained largely unchanged.
Documentary evidence
The Health Authority's Guidance on Continuing Care Review Panels
27. The Health Authority's patient leaflet entitled 'How to ask for a review if you think decisions made about you or your relative are wrong' states:
'… whether your case is reviewed will depend on the reason for your request. If you are challenging the procedure that was followed or the fact that you are being denied continuing care even though you think you comply with the criteria, your case will normally be reviewed.
'… The panel will not review your case if you are challenging or complaining about:
- the criteria themselves
- the type or location of continuing health care which you have been offered;
- the care you have already received.'
Sequence of events
28. I set out below the principal events and correspondence relevant to the matters investigated.
11 September 2001 - Mrs S wrote to the Health Authority requesting that the decision to refuse her mother funding for continued in-patient care be reviewed:
'… It is obvious that no-one has spent time with my mother or they would see how anxious she is and continually needs reassuring that she will be getting out of hospital, where she has been for 3 months and at 91 years old she deserves care and consideration. She has substantial memory problems and not even recognises her own family frequently … [I] therefore, request an independent review panel to be arranged.'
An Independent Chairman reviewed the documentation and concluded that the process for deciding whether Mrs R qualified for NHS-funded continuing care had been properly applied and that a review panel should not take place.
5 October - The Secretary of the Health Authority informed Mrs S of this decision stating:
'It is the unanimous view … of all persons concerned … that [Mrs R] does not meet the criteria for NHS Continuing Care.
'It is the view of the [Health] Authority, having consulted the Independent Chairman, that the proper process has been followed in arriving at this conclusion. The [Health] Authority has therefore decided not to proceed with the continuing care review panel.'
The new Health Authority's response to the statement of complaint.
29. On 19 April 2002 in his formal response to the statement of complaint the Chief Executive of the new Health Authority wrote:
'… In accordance with HSG (95)39 Paragraph 19 the Health Authority does have the right to decide not to convene a Panel in those cases where the patient falls well outside the eligibility criteria. Before taking such a decision, the [Health] Authority sought advice from the Independent Chairman of the Continuing Care Review Panel …
'In considering the request, the Chairman … [checked] that [the] proper procedures have been followed in reaching that decision about the need for Mrs R to receive NHS Continuing in-patient care, and to ensure that the Health Authority's eligibility criteria had been properly and consistently applied.
'… [The Chairman] … decided not to convene a Panel. ...
'Mrs S was informed of the decision on 5 October and was informed that if she was not satisfied, she could make a complaint through the NHS Complaints System.'
Findings (b)
30. I turn next to the complaint that the review process was not properly applied. HSG (95)39 clearly states that although the Health Authority does have the right not to convene a panel, this should be confined solely to those cases where the patient falls well outside the criteria. I interpret this to refer to those cases where the needs of the patient were such that there could be no doubt whatsoever that the eligibility criteria were not met. However when writing to explain the decision that no panel should be held the Health Authority did not suggest that Mrs R fell well outside the criteria, only that she did not meet them. I do consider that this was not an adequate reason for a refusal to hold a panel. It is not within the power of a panel to consider the criteria themselves: so, given the over restrictive criteria being applied, Mrs R might still reasonably have been judged to be well outside the criteria and been denied a panel or would probably not have received funding even if a panel had been held. Therefore although the review procedures were not properly followed, that in itself probably did not affect the funding decision. The main problem lay with the criteria themselves and that was not a matter the review procedure was designed to address. I uphold the complaint only to the extent that inadequate reasons were given for refusal to hold a panel.
Conclusions
31. I have set out my findings in paragraphs 20-25 and 30. The new Health Authority has agreed to make sure that the new criteria used in its area are more precise and that they will deal more explicitly with compliance with the Coughlan judgment. It has agreed that, with the Birmingham PCTs, it will review the criteria in use since 1996, by seeking further legal advice as to their compliance with the guidance and the Coughlan judgment. It has also said that it will review against the new continuing care criteria those patients currently in nursing homes and funded in part or whole by social services. If this exercise identifies anyone who might meet the criteria, they will arrange an assessment and appropriate funding. If they find that there are 'considerable numbers' who meet the criteria, they will undertake a larger retrospective exercise.
32. I am pleased that the new Health Authority has accepted most of my findings and agreed to some of the recommendations. However I am disappointed that it is not prepared to adopt in full my recommendation about determining whether there were any patients who have been wrongly refused funding since 1996. What it proposes goes a considerable way towards that, but does not involve a retrospective review, unless they find there are 'considerable numbers' of patients still alive who have suffered an injustice. However the patients most at risk of having suffered an injustice, by being wrongly judged to be ineligible for NHS funding for their care, are those with the greatest health needs. They are probably also the patients most likely to have died during the period.
33. The new Health Authority has asked me to convey through my report - as I do – its apologies to Mrs S that the criteria were worded in such a way that they could have been misinterpreted and that arrangements for Mrs R's placement were not handled as sensitively as they could have been. It says it is 'not sure of the value' of apologising about the unreasonableness of the criteria, since it is not convinced that the criteria and their application led to any injustice to Mrs S.
34. I therefore ask it to reconsider both the approach it is taking to a retrospective review and the fullness of the apology.
